SUBIR BANERJEE Vs. UNION OF INDIA AND ORS

JUDGEMENT

(1.) In the instant application the judgment and order dated 28.02.2008 passed in F.M.A. No. 744 of 2007 have been sought to be reviewed by the Appellant on grounds of dismissal of the same on technical grounds without considering the merits and all the facts on record and pleaded.

(2.) The Appellant/Petitioner contends that his father was a lower division clerk in the headquarter, Calcutta sub-area Alipore. On account of death of his father in harness on 8th February, 1987 on compassionate grounds he was provisionally appointed as a messenger against regular vacancy with effect from 1st February, 1992. But on a few occasion he could not attend his duty and by a letter dated 18th June, 1996 Brigadier, O.H.G. G.O.C. issued notice of termination of his service under Rule 5(1) of the Central Civil Services) Temporary Service 1995 intimating the Petitioner that his service will be terminated with the expiry of a period of one month. He was also not given salary in proper time. According to the Petitioner he was on leave from 11th October, 1997 to 12th October, 1997 and again he fell ill and was under medical treatment between 13th October, 1997 and 18th February, 1998 as he was suffering from Viral Hepatitis. The mother of the Petitioner made a representation before the Commandant E.M.B, the Headquarter, Calcutta, Alipore intimating that her son made four representations but no reply was received and that though his son was appointed as a messenger he was assigned with certain other laborious work for which he fell ill and as such prayed for change of duties. All such efforts yielded no fruitful result and ultimately by memo dated 06.07.2001 issued by C.S.O. he was finally intimated that his representation against termination has been considered and they adhered to their earlier decision with further intimation that no such representation shall be entertained in future. Therefore, challenging their correspondence with him the applicant preferred Writ petition being W.P. No. 8919 (W) of 2003 before this Hon'ble Court which was dismissed on 27.08.2004 by this Hon'ble Court. Against the said order of dismissal the applicant preferred an appeal being F.M.A. No. 744 of 2007 which was also dismissed by judgment and order dated 28.02.2008 affirming the order of dismissal passed by Learned Single Judge.

(3.) Being aggrieved by and dissatisfied with the said judgment dated 28.02.2008 passed by a Division Bench of this Hon'ble High Court the Appellant/Petitioner has preferred this review application contending inter alia that the Learned Single Judge considered only the technical aspect of his application under Article 226 of the Constitution of India and dismissed the same on grounds of four years' delay in preferring such application without consideration of its merits and that in the appeal also this technical aspect of inordinate delay was only considered by the Learned Division Bench who had also dismissed the appeal on the same ground. It was further contended that as a consequence the claim of the Petitioner affecting his fundamental right to leave by earning his livelihood has been affected. As the question of livelihood of a citizen is denied this should not be ignored and so in the instant review petition he has contended that the Learned Division Bench (a) has committed an error in construing that there had been a delay of four years in preferring the writ application and (b) That it is also erroneous to hold that the final order regarding termination of the applicant's service was issued by the concerned authority on 06.07.2001 and not on 27.01.1999 and (c) That the original writ petition has not been decided on merit though it affects his fundamental right and thereby there has been failure of justice.